Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered September 2, 2010.

Conenna v McKenna

Decided on October 18, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., RIOS and SOLOMON, JJ

October 18, 2012

The judgment, after a non-jury trial, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiffs in the principal sum of $9,000.

In this action for rent arrears, the Civil Court, after a non-jury trial, awarded judgment to defendants dismissing the complaint. We reverse.

Contrary to the Civil Court's findings, the proof at trial established the existence of a lease and defendants' failure to pay the monthly rent of $3,000 for October 2008 through March 2009. Moreover, notwithstanding defendants' testimony that they had returned the keys, the evidence did not establish that plaintiffs had accepted a surrender of the lease, as there was no showing that plaintiffs had utilized the premises in a manner inconsistent with defendants' rights under the lease (Brock Enters. v Dunham's Bay Boat Co., 292 AD2d 681 [2002]). Consequently, plaintiffs are liable for the six months' rent in question, totaling $18,000. However, as the evidence further established that plaintiffs are holding a security deposit in the sum of $9,000, defendants are entitled to a setoff in that amount. Accordingly, the judgment is reversed and judgment is directed to be entered awarding plaintiffs the principal sum of $9,000.

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